Why Am I Being Charged With a DWAI or DWI If I Was Only Asleep in My Car?
As a criminal defense attorney and as a prosecuting attorney, one of the questions I was most often asked by individuals charged with a drunk driving offense was, why the individual was being charged with a DWAI/DWI when he or she was actually just sleeping it off in the back (or front) seat of their car.
My honest response would be to say that I have no earthly idea why the state chooses to waste tax dollars following up with charges on a non-activity, but that really doesn't help matters much.
The fact is that the state or city's attorney must press charges because that is how the laws are written and the protocols are delivered.
DWAI is codified under New York Vehicle and Traffic Law section 1192 (1) and states "No person shall operate a motor vehicle while the person's ability to operate such motor vehicle is impaired by the consumption of alcohol.
" DWI on the other hand is codified under New York Vehicle and Traffic Law sections 1192 (2) and 1192 (3) and states "No person shall operate a motor vehicle while intoxicated.
" The legislators used the word "operate" instead of "drive", whereas later in the code the word "drive" is used.
That single word "operate" is a catch 22 within the DWAI/DWI laws for any individual who made the mistake of leaving their key in the ignition or the car running so that they would stay warm while they slept.
The protocols for prosecutors to address this individual with charges, stems from the belief that he or she at any time could choose to drive, and that the key in the ignition somehow indicates that this is a possibility.
That is the reasoning we used in the District Attorney's office to levy charges against an individual.
While the DWAI/DWI laws leave this potential open for prosecution, in most cases if the defense attorney has made a good case for their client, a favorable disposition could be worked out.
A lawyer that specializes in DWAI/DWI offenses, must show that his or her client has no prior behavior that indicates this is a pattern, and that the individual is remorseful.
If this can be accomplished successfully it is possible to have some sort of deal or bargain worked out that will not include jail time, a lengthy license suspension, or a criminal record.
The rule of thumb for most counties in New York is that if you have a clean record and no prior convictions for DWAI/DWI, the prosecutors will be willing to work with you to come up with some sort of disposition that allows you to move on with your life.
However, there are some counties in New York where they take the DWAI and DWI laws very seriously.
In Nassau County, for example, the Courts always push for some jail time involved.
Understanding the law, the policies of the various District Attorney Offices and judges in the county you are charged, is very important during the initial stage where you must choose an attorney.
If you are looking at a court system which moves for jail time it becomes more important to find the right DUI attorney to manage your case.
DWI laws and DWAI laws were written to prevent accidents caused by driving under the influence, not to punish people who weren't driving.
While they do sometimes catch those people in that same net, if you hire the right DUI lawyer for your case, you should be alright.
My honest response would be to say that I have no earthly idea why the state chooses to waste tax dollars following up with charges on a non-activity, but that really doesn't help matters much.
The fact is that the state or city's attorney must press charges because that is how the laws are written and the protocols are delivered.
DWAI is codified under New York Vehicle and Traffic Law section 1192 (1) and states "No person shall operate a motor vehicle while the person's ability to operate such motor vehicle is impaired by the consumption of alcohol.
" DWI on the other hand is codified under New York Vehicle and Traffic Law sections 1192 (2) and 1192 (3) and states "No person shall operate a motor vehicle while intoxicated.
" The legislators used the word "operate" instead of "drive", whereas later in the code the word "drive" is used.
That single word "operate" is a catch 22 within the DWAI/DWI laws for any individual who made the mistake of leaving their key in the ignition or the car running so that they would stay warm while they slept.
The protocols for prosecutors to address this individual with charges, stems from the belief that he or she at any time could choose to drive, and that the key in the ignition somehow indicates that this is a possibility.
That is the reasoning we used in the District Attorney's office to levy charges against an individual.
While the DWAI/DWI laws leave this potential open for prosecution, in most cases if the defense attorney has made a good case for their client, a favorable disposition could be worked out.
A lawyer that specializes in DWAI/DWI offenses, must show that his or her client has no prior behavior that indicates this is a pattern, and that the individual is remorseful.
If this can be accomplished successfully it is possible to have some sort of deal or bargain worked out that will not include jail time, a lengthy license suspension, or a criminal record.
The rule of thumb for most counties in New York is that if you have a clean record and no prior convictions for DWAI/DWI, the prosecutors will be willing to work with you to come up with some sort of disposition that allows you to move on with your life.
However, there are some counties in New York where they take the DWAI and DWI laws very seriously.
In Nassau County, for example, the Courts always push for some jail time involved.
Understanding the law, the policies of the various District Attorney Offices and judges in the county you are charged, is very important during the initial stage where you must choose an attorney.
If you are looking at a court system which moves for jail time it becomes more important to find the right DUI attorney to manage your case.
DWI laws and DWAI laws were written to prevent accidents caused by driving under the influence, not to punish people who weren't driving.
While they do sometimes catch those people in that same net, if you hire the right DUI lawyer for your case, you should be alright.
